NATVARLAL VALLABHBHAI PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is preferred by the appellant -orig.accused (hereinafter referred to as 'the appellant') of Special Case No.1 of 1987, tried by the learned Special Judge, Valsad at Navsari for the offences punishable under Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act'). The learned trial Judge vide his judgment and order of conviction and sentence under challenge dated 06th June, 1989, has held the appellant guilty of the charge levelled against him and sentenced him to undergo rigorous imprisonment for one year and a fine of Rs.1000/ - for each offence punishable under Section 161 of the Indian Penal Code and Section 5(2) of the Act, and in default of making payment of amount of fine, shall undergo simple imprisonment for three months.

(2.) MS .R.V. Acharya, learned counsel appearing for the appellant, has taken this Court through the grounds of challenge mentioned in paragraph no.3 of the memo of the appeal and so also relevant part of the oral well as documentary evidence led during the course of trial. According to Ms.R.V. Acharya, the finding recorded by the learned trial Judge is based on erroneous appreciation of evidence and the same is nothing but a guess work and conjecture. This is a case wherein the appellant even as per the story of the prosecution had never demanded the amount of bribe/ illegal gratification and, therefore, the alleged recovery of muddamal currency notes of Rs.60/ - cannot be equated with the recovery of bribe amount or the amount received as illegal gratification by the appellant. This case falls in the category of mere recovery of the amount and therefore, the appellant was at least required to be given benefit of doubt.

(3.) SHRI A.J. Desai, learned Additional Public Prosecutor, appearing for the respondent -State by reading the relevant part of the oral evidence as well as the documents referred to by the learned trial Judge, has submitted that the finding recorded by the learned trial Judge is based on sound reasons. There is no element of either conjectures or surmises. The panchnama has been rightly appreciated. Some part of evidence of the complainant if is considered in the background of the evidence led by the panch no.1 and the answers given by the panch no.1 -PW -4 in the cross -examination, it emerges clearly beyond reasonable doubt that the bribe amount of Rs.80/ - was to be given to the appellant by the complainant. The appellant had agreed to accept the said amount. However, on account of request extended by the complainant, the appellant had tried to return the amount of Rs.20/ - from the total bribe amount of Rs.80/ - and the appellant pocketed the remaining amount of Rs.60/ - in presence of panch no.1 -PW -4, who is an independent witness. When there is neither any allegation against the panch no.1 nor there is any allegation against the Investigating Officer of substantive nature, whereby it can be inferred that this panch no.1 was selected purposefully, there was no reason for the learned trial Judge to discard the panchnama, mainly the second part of panchnama. It is in evidence that when the hands of the appellant were seen under the ultraviolet lamp rays, both hands of the appellant were found stained with anthracene powder and the amount of Rs.60/ - as narrated in the panchnama was recovered from the pocket of the appellant, which was lying with one small plastic wallet of the appellant. It is proved beyond reasonable doubt that the appellant was on duty in his office and as a public servant, he was discharging his duty. It is a case where the prosecution has not come forward with a case at all that a particular amount was demanded by the appellant on a particular day or a place. The story of the prosecution is consistent that the appellant was demanding and accepting the extra charge of 40% of the actual Government fees, which was otherwise payable to the State for the exercise which is required to be carried out by the officials of the Weights and Measures Department. The fees are prescribed, is not the matter of dispute since the competent officer is issuing certificate qua the instruments of Weights and Measures. In the present case, the legitimate fees payable by the complainant to the Government was of Rs.200/ - and how and why the complainant was required to pay an amount of Rs.200/ - to the appellant has been described by him in the complaint itself. So the acceptance, according to Shri A.J. Desai, has been satisfactorily proved by the prosecution and obviously therefore, the learned trial Judge was entitled to raise the presumption against the appellant. The only crucial question before the learned trial Judge was whether the appellant has successfully rebutted this presumption or not ? If the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, 1973, is appreciated, there is no element of explanation capable of rebutting the presumption qua the amount accepted by him. On the contrary, the appellant has claimed that because of some inimical feelings and as he had acted against the complainant in the recent past, the complainant created a false case and implicated the appellant in the ACB trap with the help of the Trapping Officer.